Chelentis v. Luckenbach S.S. Co., Inc.
| Decision Date | 25 May 1917 |
| Docket Number | 223. |
| Citation | 243 F. 536 |
| Parties | CHELENTIS v. LUCKENBACH S.S. CO., Inc. |
| Court | U.S. Court of Appeals — Second Circuit |
Silas B. Axtell, of New York City (F. R. Graves, of New York City of counsel), for plaintiff in error.
Carter & Carter, of New York City (Peter Carter, of New York City of counsel), for defendant in error.
Before WARD, ROGERS, and HOUGH, Circuit Judges.
This was an action at common law by a seaman employed on the steamer J.L. Luckenbach against her owners to recover damages for personal injuries sustained by him on his second voyage. The only charge of negligence in the complaint as to which there was any proof was as follows:
'* * * Because said defendants and said persons in their service having command negligently and unlawfully compelled plaintiff to carry an ash bag across an open and exposed deck on board said vessel during a severe storm and while the waves were calculated to and did break over the same plaintiff, although himself in the exercise of due care, was suddenly and without warning struck by a wave with great violence and precipitated from his feet, thereby sustaining severe, painful, and permanent personal injuries, as hereinafter more particularly set forth.'
The plaintiff sued for full indemnity, and on the trial declined to make claim for wages to the end of the voyage and expenses of cure and maintenance for a reasonable time thereafter, insisting that by virtue of section 20 of the Seamen's Act of March 4, 1915, he was entitled to full indemnity and to go to the jury on the question of the defendant's negligence and of his own contributory negligence. This section reads:
Judge Manton directed a verdict for the defendant, relying on the decision of the Supreme Court in The Osceola, 189 U.S. 158, 23 Sup.Ct. 483, 47 L.Ed. 760.
December 26, 1915, the plaintiff, Chelentis, a fireman, was in the watch of Snell, the second engineer, 12 to 4 a.m. At 4 a.m. he came on deck, in accordance with the regular practice, to rest for half an hour and then with his mate to take the ashes raked from the fires by the 4 to 8 watch and put into bags lifted by machinery from the stokehole to the grating in the fireroom level with the deck. One man would take a bag off the hoist and deliver it to his mate, to be carried by him through the port door of the fireroom out on deck and dumped over the port side.
The only ash hoist was on the port side and there was a coal bunker running across the grating in the fireroom from side to side. The cross bunker did not prevent any one from going through the port door of the fireroom to the port side, but if the bags were to be dumped on the starboard side a third man would be needed, viz., one to take the bag from the hoist and deliver it to another, to carry it to and pass it over the cross bunker to a third, to carry it from there to the door on the starboard side and dump it over.
At 4:30 a.m. the plaintiff and his mate went to the engineroom and asked Keyser, the first assistant engineer in charge of the watch, to give them a third man, so that they could dump the ashes over the starboard side, the sea being so high on the port side as to make it dangerous to dump them there. This they testified he refused, with oaths, and drove them out of the engineroom, ordering them to do the work as usual. As the plaintiff was returning to the ash hoist after emptying his first bag over the port side, a wave struck him and carried him...
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Johnson v. A/S Ivarans Rederi
...recover for the vessel's negligence unless the negligence coincidentally created the unseaworthy condition. See Chelentis v. Luckenbach S.S. Co., 243 F. 536 (2d Cir. 1917), Aff'd, 247 U.S. 372, 38 S.Ct. 501, 62 L.Ed. 1171 (1918). With passage of the Jones Act, both the seaman and the longsh......
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